[As Amended by Senate Committee of the
Whole]
Session of 2000
SENATE Substitute for
Substitute for HOUSE BILL No. 2864
By Elections and Local Government
4-6
12 AN ACTconcerning
public records; providing for local freedom of infor-
13 mation officers;
prescribing the powers and duties thereof; amending
14 K.S.A. 45-222 and
45-223 and K.S.A. 1999 Supp. 45-221 and repealing
15 the existing
sections.
16
17 Be it enacted by the Legislature of the
State of Kansas:
18 New Section
1. (a) The governing body of every public agency in
19 Kansas which maintains public records shall
designate a local freedom of
20 information officer.
21 (b) The local
freedom of information officer or the local freedom of
22 information officer's designee shall:
23 (1) Prepare and
provide educational materials and information con-
24 cerning the open records act;
25 (2) be available
to assist the local government
[public agency] and
26 members of the general public to resolve
disputes relating to the open
27 records act;
28 (3) respond to
inquiries relating to the open records act;
29
(4) issue advisory opinions, when requested,
concerning specific open
30 records requests;
and
31
(5) [(4)] establish the
requirements for the content, size, shape and
32 other physical characteristics of a
brochure required to be displayed or
33 distributed or otherwise make available to
the public under the open
34 records act. In establishing such
requirements for the content of the bro-
35 chure, the local freedom of information
officer shall include plainly writ-
36 ten basic information about the rights of a
requestor, the responsibilities
37 of a public agency, and the procedures for
inspecting and obtaining a
38 copy of public records under the open
records act.
39 (c) This section
shall be a part of and supplemental to the Kansas
40 open records act.
41 New Sec.
2. (a) An official custodian shall prominently display or
42 distribute or otherwise make available to
the public a brochure in the
43 form prescribed by the local freedom of
information officer that contains
2
1 basic information about the rights of
a requestor, the responsibilities of
2 a public agency, and the procedures
for inspecting or obtaining a copy of
3 public records under the open records
act. The official custodian shall
4 display or distribute or otherwise
make available to the public the bro-
5 chure at one or more places in the
administrative offices of the govern-
6 mental body where it is available to
members of the public who request
7 public information in person under
this act.
8 (b) This
section shall be a part of and supplemental to the Kansas
9 open records act.
10 Sec.
3. K.S.A. 1999 Supp. 45-221 is hereby amended to read as
fol-
11 lows: 45-221. (a) Except to the extent
disclosure is otherwise required by
12 law, a public agency shall not be required
to disclose:
13 (1) Records the
disclosure of which is specifically prohibited or re-
14 stricted by federal law, state statute or
rule of the Kansas supreme court
15 or the disclosure of which is prohibited or
restricted pursuant to specific
16 authorization of federal law, state statute
or rule of the Kansas supreme
17 court to restrict or prohibit
disclosure.
18 (2) Records which
are privileged under the rules of evidence, unless
19 the holder of the privilege consents to the
disclosure.
20 (3) Medical,
psychiatric, psychological or alcoholism or drug depend-
21 ency treatment records which pertain to
identifiable patients.
22 (4) Personnel
records, performance ratings or individually identifia-
23 ble records pertaining to employees or
applicants for employment, except
24 that this exemption shall not apply to the
names, positions, salaries and
25 lengths of service of officers and
employees of public agencies once they
26 are employed as such.
27 (5) Information
which would reveal the identity of any undercover
28 agent or any informant reporting a specific
violation of law.
29 (6) Letters of
reference or recommendation pertaining to the char-
30 acter or qualifications of an identifiable
individual.
31 (7) Library,
archive and museum materials contributed by private
32 persons, to the extent of any limitations
imposed as conditions of the
33 contribution.
34 (8) Information
which would reveal the identity of an individual who
35 lawfully makes a donation to a public
agency, if anonymity of the donor
36 is a condition of the donation.
37 (9) Testing and
examination materials, before the test or examination
38 is given or if it is to be given again, or
records of individual test or ex-
39 amination scores, other than records which
show only passage or failure
40 and not specific scores.
41 (10) Criminal
investigation records, except that the district court, in
42 an action brought pursuant to K.S.A.
45-222, and amendments thereto,
43 may order disclosure of such records,
subject to such conditions as the
3
1 court may impose, if the court finds
that disclosure:
2 (A) Is in
the public interest;
3 (B) would
not interfere with any prospective law enforcement action;
4 (C) would
not reveal the identity of any confidential source or un-
5 dercover agent;
6 (D) would
not reveal confidential investigative techniques or proce-
7 dures not known to the general
public;
8 (E) would
not endanger the life or physical safety of any person; and
9 (F) would
not reveal the name, address, phone number or any other
10 information which specifically and
individually identifies the victim of any
11 sexual offense in article 35 of chapter 21
of the Kansas Statutes Anno-
12 tated, and amendments thereto.
13 (11) Records of
agencies involved in administrative adjudication or
14 civil litigation, compiled in the process
of detecting or investigating vio-
15 lations of civil law or administrative
rules and regulations, if disclosure
16 would interfere with a prospective
administrative adjudication or civil
17 litigation or reveal the identity of a
confidential source or undercover
18 agent.
19 (12) Records of
emergency or security information or procedures of
20 a public agency, or plans, drawings,
specifications or related information
21 for any building or facility which is used
for purposes requiring security
22 measures in or around the building or
facility or which is used for the
23 generation or transmission of power, water,
fuels or communications, if
24 disclosure would jeopardize security of the
public agency, building or
25 facility.
26 (13) The contents
of appraisals or engineering or feasibility estimates
27 or evaluations made by or for a public
agency relative to the acquisition
28 of property, prior to the award of formal
contracts therefor.
29
(14) Correspondence between a public agency and a private
individ-
30 ual, other than correspondence which is
intended to give notice of an
31 action, policy or determination relating to
any regulatory, supervisory or
32 enforcement responsibility of the public
agency or which is widely dis-
33 tributed to the public by a public agency
and is not specifically in response
34 to communications from such a private
individual.
35 (15) Records
pertaining to employer-employee negotiations, if dis-
36 closure would reveal information discussed
in a lawful executive session
37 under K.S.A. 75-4319, and amendments
thereto.
38 (16) Software
programs for electronic data processing and documen-
39 tation thereof, but each public agency
shall maintain a register, open to
40 the public, that describes:
41 (A) The
information which the agency maintains on computer facil-
42 ities; and
43 (B) the form in
which the information can be made available using
4
1 existing computer programs.
2
(17) Applications, financial statements and other information
sub-
3 mitted in connection with
applications for student financial assistance
4 where financial need is a
consideration for the award.
5 (18) Plans,
designs, drawings or specifications which are prepared by
6 a person other than an employee of a
public agency or records which are
7 the property of a private person.
8 (19) Well
samples, logs or surveys which the state corporation com-
9 mission requires to be filed by
persons who have drilled or caused to be
10 drilled, or are drilling or causing to be
drilled, holes for the purpose of
11 discovery or production of oil or gas, to
the extent that disclosure is limited
12 by rules and regulations of the state
corporation commission.
13 (20) Notes,
preliminary drafts, research data in the process of anal-
14 ysis, unfunded grant proposals, memoranda,
recommendations or other
15 records in which opinions are expressed or
policies or actions are pro-
16 posed, except that this exemption shall not
apply when such records are
17 publicly cited or identified in an open
meeting or in an agenda of an open
18 meeting.
19 (21) Records of a
public agency having legislative powers, which re-
20 cords pertain to proposed legislation or
amendments to proposed legis-
21 lation, except that this exemption shall
not apply when such records are:
22 (A) Publicly
cited or identified in an open meeting or in an agenda
23 of an open meeting; or
24 (B) distributed
to a majority of a quorum of any body which has au-
25 thority to take action or make
recommendations to the public agency with
26 regard to the matters to which such records
pertain.
27 (22) Records of a
public agency having legislative powers, which re-
28 cords pertain to research prepared for one
or more members of such
29 agency, except that this exemption shall
not apply when such records are:
30 (A) Publicly
cited or identified in an open meeting or in an agenda
31 of an open meeting; or
32 (B) distributed
to a majority of a quorum of any body which has au-
33 thority to take action or make
recommendations to the public agency with
34 regard to the matters to which such records
pertain.
35 (23) Library
patron and circulation records which pertain to identi-
36 fiable individuals.
37 (24) Records
which are compiled for census or research purposes and
38 which pertain to identifiable
individuals.
39 (25) Records
which represent and constitute the work product of an
40 attorney.
41 (26) Records of a
utility or other public service pertaining to individ-
42 ually identifiable residential customers of
the utility or service, except that
43 information concerning billings for
specific individual customers named
5
1 by the requester shall be subject to
disclosure as provided by this act.
2
(27) Specifications for competitive bidding, until the
specifications
3 are officially approved by the public
agency.
4 (28) Sealed
bids and related documents, until a bid is accepted or all
5 bids rejected.
6
(29) Correctional records pertaining to an identifiable inmate
or re-
7 lease, except that:
8 (A) The
name; photograph and other identifying information; sen-
9 tence data; parole eligibility date;
custody or supervision level; disciplinary
10 record; supervision violations; conditions
of supervision, excluding
11 requirements pertaining to mental health or
substance abuse counseling;
12 location of facility where incarcerated or
location of parole office main-
13 taining supervision and address of a
releasee whose crime was committed
14 after the effective date of this act shall
be subject to disclosure to any
15 person other than another inmate or
releasee, except that the disclosure
16 of the location of an inmate transferred to
another state pursuant to the
17 interstate corrections compact shall be at
the discretion of the secretary
18 of corrections;
19 (B) the ombudsman
of corrections, the attorney general, law enforce-
20 ment agencies, counsel for the inmate to
whom the record pertains and
21 any county or district attorney shall have
access to correctional records to
22 the extent otherwise permitted by law;
23 (C) the
information provided to the law enforcement agency pursu-
24 ant to the sex offender registration act,
K.S.A. 22-4901, et seq., and
25 amendments thereto, shall be subject to
disclosure to any person, except
26 that the name, address, telephone number or
any other information which
27 specifically and individually identifies
the victim of any offender required
28 to register as provided by the Kansas
offender registration act, K.S.A. 22-
29 4901 et seq. and amendments thereto,
shall not be disclosed; and
30 (D) records of
the department of corrections regarding the financial
31 assets of an offender in the custody of the
secretary of corrections shall
32 be subject to disclosure to the victim, or
such victim's family, of the crime
33 for which the inmate is in custody as set
forth in an order of restitution
34 by the sentencing court.
35 (30) Public
records containing information of a personal nature
36 where the public disclosure thereof would
constitute a clearly unwar-
37 ranted invasion of personal privacy.
38 (31) Public
records pertaining to prospective location of a business
39 or industry where no previous public
disclosure has been made of the
40 business' or industry's interest in
locating in, relocating within or expand-
41 ing within the state. This exception shall
not include those records per-
42 taining to application of agencies for
permits or licenses necessary to do
43 business or to expand business operations
within this state, except as
6
1 otherwise provided by law.
2
(32) The bidder's list of contractors who have
requested bid proposals
3 for construction projects
from any public agency, until a bid is accepted
4 or all bids
rejected.
5
(33) Engineering and architectural estimates made by
or for any pub-
6 lic agency relative to public
improvements.
7
(34) (33) Financial information
submitted by contractors in qualifi-
8 cation statements to any public
agency.
9
(35) (34) Records involved in the
obtaining and processing of intel-
10 lectual property rights that are expected
to be, wholly or partially vested
11 in or owned by a state educational
institution, as defined in K.S.A. 76-
12 711, and amendments thereto, or an assignee
of the institution organized
13 and existing for the benefit of the
institution.
14 (36)
(35) Any report or record which is made pursuant to
K.S.A. 65-
15 4922, 65-4923 or 65-4924, and amendments
thereto, and which is privi-
16 leged pursuant to K.S.A. 65-4915 or
65-4925, and amendments thereto.
17 (37)
(36) Information which would reveal the precise
location of an
18 archeological site.
19 (38)
(37) Any financial data or traffic information from a
railroad com-
20 pany, to a public agency, concerning the
sale, lease or rehabilitation of
21 the railroad's property in Kansas.
22 (39)
(38) Risk-based capital reports, risk-based capital
plans and cor-
23 rective orders including the working papers
and the results of any analysis
24 filed with the commissioner of insurance in
accordance with K.S.A. 1999
25 Supp. 40-2c20, and amendments thereto.
26 (40)
(39) Memoranda and related materials required to be
used to
27 support the annual actuarial opinions
submitted pursuant to subsection
28 (b) of K.S.A. 40-409, and amendments
thereto.
29 (41)
(40) Disclosure reports filed with the commissioner of
insurance
30 under subsection (a) of K.S.A. 1999 Supp.
40-2,156, and amendments
31 thereto.
32 (42)
(41) All financial analysis ratios and examination
synopses con-
33 cerning insurance companies that are
submitted to the commissioner by
34 the national association of insurance
commissioners' insurance regulatory
35 information system.
36 (43)
(42) Any records the disclosure of which is restricted
or prohib-
37 ited by a tribal-state gaming compact.
38 (44)
(43) Market research, market plans, business plans and
the terms
39 and conditions of managed care or other
third party contracts, developed
40 or entered into by the university of Kansas
medical center in the operation
41 and management of the university hospital
which the chancellor of the
42 university of Kansas or the chancellor's
designee determines would give
43 an unfair advantage to competitors of the
university of Kansas medical
7
1 center.
2 (b) Except
to the extent disclosure is otherwise required by law or as
3 appropriate during the course of an
administrative proceeding or on ap-
4 peal from agency action, a public
agency or officer shall not disclose fi-
5 nancial information of a taxpayer
which may be required or requested by
6 a county appraiser or the director of
property valuation to assist in the
7 determination of the value of the
taxpayer's property for ad valorem tax-
8 ation purposes; or any financial
information of a personal nature required
9 or requested by a public agency or
officer, including a name, job descrip-
10 tion or title revealing the salary or other
compensation of officers, em-
11 ployees or applicants for employment with a
firm, corporation or agency,
12 except a public agency. Nothing contained
herein shall be construed to
13 prohibit the publication of statistics, so
classified as to prevent identifi-
14 cation of particular reports or returns and
the items thereof.
15 (c) As used in
this section, the term ``cited or identified'' shall not
16 include a request to an employee of a
public agency that a document be
17 prepared.
18 (d) If a public
record contains material which is not subject to dis-
19 closure pursuant to this act, the public
agency shall separate or delete
20 such material and make available to the
requester that material in the
21 public record which is subject to
disclosure pursuant to this act. If a public
22 record is not subject to disclosure because
it pertains to an identifiable
23 individual, the public agency shall delete
the identifying portions of the
24 record and make available to the requester
any remaining portions which
25 are subject to disclosure pursuant to this
act, unless the request is for a
26 record pertaining to a specific individual
or to such a limited group of
27 individuals that the individuals'
identities are reasonably ascertainable, the
28 public agency shall not be required to
disclose those portions of the record
29 which pertain to such individual or
individuals.
30 (e) The
provisions of this section shall not be construed to exempt
31 from public disclosure statistical
information not descriptive of any iden-
32 tifiable person.
33
(f) Notwithstanding the provisions of subsection (a), any
public rec-
34 ord which has been in existence more than
70 years shall be open for
35 inspection by any person unless disclosure
of the record is specifically
36 prohibited or restricted by federal law,
state statute or rule of the Kansas
37 supreme court or by a policy adopted
pursuant to K.S.A. 72-6214, and
38 amendments thereto.
39 Sec.
4. K.S.A. 45-222 is hereby amended to read as follows:
45-222.
40 (a) The district court of any county in
which public records are located
41 shall have jurisdiction to enforce the
purposes of this act with respect to
42 such records, by injunction, mandamus or
other appropriate order, in an
43 action brought by any person, the attorney
general or a county or district
8
1 attorney.
2 (b) In any
action hereunder, the court shall determine the matter
de
3 novo. The court on its own
motion, or on motion of either party, may
4 view the records in controversy in
camera before reaching a decision.
5 (c) In any
action hereunder, the court may shall award
attorney fees
6 to the plaintiff if the court finds
that the agency's denial of access to the
7 public record was not in good faith
and without a reasonable basis in fact
8 or law. The award shall be assessed
against the public agency that the
9 court determines to be responsible
for the violation.
10 (d) In any action
hereunder in which the defendant is the prevailing
11 party, the court may
shall award to the defendant attorney fees if the
12 court finds that the plaintiff maintained
the action not in good faith and
13 without a reasonable basis in fact or
law.
14 (e) Except as
otherwise provided by law, proceedings arising under
15 this section shall be assigned for hearing
and trial at the earliest practi-
16 cable date.
17 Sec.
5. K.S.A. 45-223 is hereby amended to read as follows:
45-223.
18 No public agency nor any officer or
employee of a public agency shall be
19 liable for damages resulting from
the failure to provide access to a public
20 record in violation of this
act (a) Any public agency
subject to this act
21 that knowingly violates any
of the provisions of this act or that
intention-
22 ally fails to furnish
information as required by this act shall be liable
for
23 the payment of a civil
penalty in an action brought by the attorney
general
24 or county or district
attorney, in a sum set by the court of not to
exceed
25 $500 for each
violation. [Any public agency which denies
access to a
26 public record under the open records
act without a reasonable basis
27 in fact or law to make such denial,
and with specific intent to violate
28 this act, shall be liable for the
payment of a civil penalty in an action
29 brought by the attorney general or
county or district attorney, in a
30 sum set by the court of not to exceed
$500 for each violation.]
31 (b) Any civil
penalty sued for and recovered hereunder by the attor-
32 ney general shall be paid into the state
general fund. Any civil penalty
33 sued for and recovered hereunder by a
county or district attorney shall
34 be paid into the general fund of the
county in which the proceedings were
35 instigated.
36 Sec. 6. K.S.A. 45-222 and 45-223
and K.S.A. 1999 Supp. 45-221 are
37 hereby repealed.
38 Sec. 7. This act shall
take effect and be in force from and after its
39 publication in the statute book.